In re Thomas Fortune Fay
111 A.3d 1025
| D.C. | 2015Background
- In 1996 Charles Carter was injured in a D.C. auto accident and retained Joel Chasnoff (licensed in MD and D.C., but his D.C. membership was suspended for nonpayment of dues).
- Chasnoff asked respondent Thomas Fay to allow Chasnoff to use Fay’s name and D.C. bar number to file a complaint because Chasnoff’s D.C. status was inactive. Fay’s paralegal filed the complaint listing both attorneys; Fay later filed motions to reinstate and for substituted service.
- The case was dismissed for lack of service; Fay’s motions were denied and Chasnoff was later disbarred.
- Bar Counsel charged Fay with multiple violations of the Rules of Professional Conduct for having formed an attorney-client relationship and failing to meet duties of competence, diligence, communication, and written fee agreement.
- A Hearing Committee and the D.C. Board found Fay had assumed the attorney-client relationship by signing/using his bar number and filing pleadings, and recommended an informal admonition given mitigating factors.
- The D.C. Court of Appeals affirmed: Fay formed the attorney-client relationship, violated Rules 1.1(b), 1.3, 1.4(a)/(b), and 1.5(b), and was to receive an informal admonition; Fay’s procedural/due-process challenges were rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fay entered into an attorney-client relationship with Carter | Fay’s filings (signature and bar number) and subsequent motions established an attorney-client relationship and attendant ethical duties | Fay contended no representation agreement existed and thus no attorney-client relationship arose | Court held Fay did form an attorney-client relationship based on totality of circumstances and his filings as officer of the court |
| Whether Fay violated duties of competence and diligence (Rules 1.1(b), 1.3) | Bar argued Fay failed to serve Carter with skill and to pursue the case diligently after filing | Fay argued he intended only to assist Chasnoff and expected Chasnoff to assume responsibility | Court held Fay breached competence and diligence duties by assuming responsibility and failing to adequately pursue the matter |
| Whether Fay violated duties to communicate and explain matters to client (Rules 1.4(a), (b)) | Bar alleged Fay failed to keep Carter informed and explain the case status sufficiently | Fay contended limited involvement and reliance on Chasnoff meant no communication obligations arose | Court held Fay had communication obligations once he acted as counsel and failed to satisfy them |
| Appropriate sanction and due process challenges | Bar recommended discipline balancing public protection and mitigation; Hearing Committee/Board recommended informal admonition | Fay argued procedural errors (no voir dire, delay, non-resident committee member, punitive sanction) warranted reversal or lesser sanction | Court affirmed informal admonition given mitigating factors and found no due process violation or substantial prejudice |
Key Cases Cited
- In re Washington, 489 A.2d 452 (D.C. 1985) (attorney who undertakes to act invokes the Code and its enforcement)
- In re Lieber, 442 A.2d 153 (D.C. 1982) (attorney-client relationship may arise absent written agreement; totality of circumstances controls)
- In re Ryan, 670 A.2d 375 (D.C. 1996) (ethical obligations arise from establishment of fiduciary relationship)
- In re Goffe, 641 A.2d 458 (D.C. 1994) (court is responsible for imposing sanctions; sanctions should protect public and deter future misconduct)
- Powell v. Alabama, 287 U.S. 45 (1932) (court-appointed counsel and related duties under certain circumstances)
- Theard v. United States, 354 U.S. 278 (1957) (discussion of attorney duties as officers of the court)
- Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866) (attorneys are officers of the court and subject to professional regulation)